NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1995 AND MILITARY CONSTRUCTION AUTHORIZATION ACT FOR FISCAL YEAR 1995--CONFERENCE REPORT (Senate - September 12, 1994)

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The Senate resumed consideration of the bill.

REACTIVATION OF THE SR-71 RECONNAISSANCE AIRCRAFT

Mr. BYRD. Mr. President, I am very pleased that the conference committee on the DOD authorization bill has chosen to accept my proposal to reactivate a small, three-plane contingency group of SR-71 reconnaissance aircraft. The SR-71 will be able to provide a timely, flexible, unique reconnaissance capability, at the call of our CINC's worldwide, which is not now available. I am also supportive of a range of development vehicles, unmanned aerial aircraft, or `UAV's,' which eventually can partly make up for the gaps in our intelligence which will be filled by the SR-71. But those vehicles are years away from fielding, and in the meantime this contingency group can provide invaluable special radar and optical intelligence that would not otherwise be available by any other means now in America's inventory, including our satellites and other aircraft such as the U-2. I say it is unique because it can defeat deception, as satellites cannot, and it can go anywhere, virtually invulnerable, as our other aircraft cannot.

I believe that the previous administration made a mistake in prematurely retiring this system, in the hope that systems then under development would replace it. But those systems have not come along, and the proposal that I have made would be a frugal, stripped down, modest, contingency group, not a full-fledged 12-plane squadron as was the heart of the previous program. So we have the capability reactivated without high cost, a reinvestment in a proven capability that is well worth the money--particularly in comparison to the cost of the billions that we intend to invest in new systems that may, I emphasize may, be able to take up this intelligence task 5 to 10 years or so down the road.

I understand that there are forces in the Air Force and the Pentagon opposed to this modest reactivation proposal. I suspect that their opposition is based on the fear that we may discover that the very expensive new systems they want to build might be jeopardized by this action. That is not the intent of the proposed new contingency group, but I am all for saving money on redundant and wasteful defense technologies, and if it is redundancy that we are buying, then we need to take a good second look at the billions planned for spending on new technologies. If the buzzword in the Pentagon is to spend money on new toys rather than using effectively and frugally the ones we have already paid for, then the American people would expect us to take a hard, close second look at the new spending plans.

Mr. President, I say it was a mistake for the Bush administration to scrap the SR-71 prematurely and open up a gap in our reconnaissance capabilities. What were their reasons for scrapping this important capability?

The primary reason given in 1989 and 1990 for terminating the SR-71 program was cost. The operating costs for the 12-plane fleet were averaging $250 million each year, for a system that was not then being creatively or effectively employed. This reasoning seems faulty, however, in light of the enormous sums being spent on a new headquarters building for the National Reconnaissance Office [NRO], the agency that builds and operates the intelligence community's satellite systems. To terminate an operational system that to this day has not been surpassed in capability on the basis that it is too expensive to operate, while spending over $300 million just to house the NRO, not on actual intelligence collection systems, is like building the Taj Mahal of Garages when you just sold the car that was to be parked inside. This wasteful, extravagant, and secretive spending is more than three times the amount needed to keep a contingency capability of SR-71 alive to support military commanders in the field.

Creating the 3-plane contingency force at a cost of $100 million, and maintaining it for some $50 million per year, which includes 1 month of operations with 10 mission flights, is far less expensive than developing and fielding new aircraft or satellite systems. After carefully studying the costs of this small program, and after including cost-reducing measures such as basing the contingency force with the NASA-operated research SR-71's in order to share common equipment, I am confident that this contingency group can be reactivated for $100 million. Indeed, in the DOD appropriations bill, the costs for reactivating the program have been capped at that amount.

A second reason given for the termination of the SR-71 program was that the system was no longer needed, since it was not being used well and newer systems were coming. We now know that the new systems have either been canceled or are still some years off. I concede that the SR-71 was not being effectively employed in the 1980's. But now that the static cold war era is over, the blossoming of smaller regional and ethnic conflicts around the globe has created many new requirements for conflict monitoring and humanitarian crisis planning. These requirements could be efficiently supported by limited numbers of SR-71 aircraft flying a small number of well-planned missions. One of the lessons learned from the Persian Gulf War was that the SR-71 was needed to create maps and to monitor activity over large areas. Civilian satellite systems were pressed into service to support humanitarian air drops of food in Bosnia in 1993, but the greater resolution and finer detail achievable by the SR-71 cameras might have made greater precision in air drops achievable. Similar creative use of the SR-71 could support humanitarian efforts in Rwanda and Zaire without drawing national collection systems away from other areas of interest.

Finally, opponents of the SR-71 suggest that America's political authorities lack the will to use the SR-71 to overfly hostile territory. It is true that in 1991, a political decision was made not to overfly Iraq, despite the potential intelligence that might have been gathered for the United States and her allies. I do not believe that one decision, taken by one administration, should forever tie the hands of future administrations. It is far better for our national leaders to have the instrument at hand, to use if necessary, than to deny them the opportunity to use it by assuming that they will never have the political will to overfly a nation if our intelligence needs, and our combat forces at risk, demand it. I applaud the decision made by the conference committee to provide this contingency force, and to keep this tool in our intelligence arsenal.

Section 1012 would grant immunity under U.S. law to agents and employees of the United States and foreign countries engaged in interdiction of aircraft suspected of illicit drug trafficking. This provision condones the shoot-down of civil aircraft and all but exempts American and foreign agents from responsibility under U.S. law if an innocent aircraft is accidentally shot down.

This provision was passed in the Senate by voice vote without the benefit of hearings and in the face of significant opposition by affected organizations. Yet it reverses well-established U.S. policy, sets troubling precedents for U.S. and international law and contradicts key international conventions governing civil air safety--conventions promoted by the United States and approved by this body.

It has been argued that this provision is needed so that we can continue assisting Colombia and Peru in their fight against illicit drug trafficking. In fact, this provision is only needed if the United States is willing to condone shoot-down policies of foreign countries.

Although the United States has provided intelligence to support Colombian and Peruvian drug interdiction efforts for years, circumstances surrounding this assistance have now dramatically changed. Both countries have adopted policies of shooting down civil aircraft suspected of illicit drug trafficking. Given this situation, the United States faced a choice: either not participate in such shoot-downs, seek to dissuade Colombia and Peru to abandon their shoot-down policies, or seek an exemption from United States law to allow us to participate in civil aircraft shoot-downs.

Even if we accept the administration's position that United States law prohibits United States officials from assisting foreign countries with drug interdiction if they adopt shoot-down policies, it is far from clear that section 1012 is the correct solution to the dilemma created by Colombia and Peru. By accepting their shoot-down policies without any serious effort to dissuade them, the United States has allowed Colombia and Peru to drive United States policy and thereby to shape United States law. This is unacceptable on its face. Instead, the United States should have made it clear to these countries that shooting down civil aircraft is unacceptable under any circumstances short of a direct military threat.

In choosing to accept Colombia's and Peru's shoot-down policies, the administration has opened up a number of dangerous precedents. Perhaps most troubling, section 1012 blurs the line between law enforcement and national defense. By elevating drug trafficking to the level of a threat to national security--justifying the use of deadly force against civil aircraft--section 1012 fundamentally departs from accepted standards of international law and long-held U.S. policy.

This is not a new issue. Four years ago, when faced with a similar proposal, the Bush administration stood firm in opposition to any law that would involve the United States in the shoot-down of civil aircraft.

In testimony before a House subcommittee in 1990, the Transportation Department's general counsel, Mr. Phillip D. Brady, made the following observations:

It has been the position of the United States and the world aviation community that international law prohibits the use of weapons against civilian aircraft not posing a clear and present danger, in the military sense, to the security of a nation.

For many years we have opposed, for both legal and safety reasons, other countries' occasionally announced intentions to shoot at civil aircraft. Once such a practice begins, it could have dangerous and widespread consequences that could affect the safety of innocent people worldwide. As the world leader in civil aviation, the United States would have more to lose than any other country in the development of such a practice.

But now, after all these years, the Clinton administration has decided to overturn these precedents, and without any serious debate or discussion. The administration's own legal analysis highlights the import of such a departure. As this analysis points out: `There are of course numerous policy implications from moving away from the existing `bright line' standard that only self-defense can justify a shoot-down.' These implications, however, have received only minimal consideration, and virtually none by Congress.

In 1989, the Senate debated the issue of civil shootdown, but strictly in the context of U.S. drug enforcement efforts. At that time, the Senate voted twice on amendments to authorize U.S. Federal drug enforcement agencies to shoot at aircraft suspected of drugrunning. Although the first amendment passed on August 1, 1989, it was later dropped in conference. I voted against this amendment.

Two months later, a revised version of this amendment was considered, and tabled. I voted against the tabling motion at that time for several reasons. First and foremost, the revised amendment contained stringent conditions and safeguards that would have made it almost impossible for a shootdown to occur, let alone one involving innocents. And second, the amendment would only have indemnified U.S. drug officials. It would not have involved the U.S. military in the shootdown policies of foreign countries. And it would not have made a national security argument to justify such actions. As it turns out, the Senate rejected even this revised approach.

Today, I believe that abandoning our unconditional opposition to shooting down civil aircraft sends a very bad message, even if the rationale--interdicting the flow of illicit drugs--is a worthy one. By making a national security argument to justify such activity, we blur a line that was previously clear. By offering this exception to current practice, we invite others to do the same, perhaps for far less worthy reasons. Recall, after all, that the Soviet Union used a national security argument to justify the shootdown of KAL 007 in 1983.

The only thing the families of the KAL 007 victims ever got was a promise from the United States and the international community that we would never condone, under any circumstances, the deliberate shootdown of a civilian aircraft. The law that the Clinton administration now seeks to undo is the only tangible compensation that these families ever received.

If section 1012 is enacted, we will virtually eliminate legal recourse for the victims of an accidental shootdown in Colombia and Peru. By passing this law, we will encourage Colombia and Peru to become more aggressive in implementing their shootdown policies. Accidents happen all too often without American encouragement.

Under section 1012, once the President certifies that `the country has appropriate procedures in place to protect against the loss of innocent life in the air and on the ground in connection with interdiction' the United States is free to participate in such shootdowns. As a practical matter, no country has an adequate degree of protection against such accidents. Recall that the United States military itself--with the best procedures in the world to protect against the loss of innocent life--has been responsible for such accidents in the past. Why should we have greater confidence in Colombia and Peru? And why should we encourage them in this regard?

Mr. President, I am not alone in expressing concern about this provision. A number of key organizations directly affected by section 1012 have also voiced strong opposition. These concerns have been all but ignored by the administration and by Congress.

The Aircraft Owners and Pilots Association [AOPA] and the National Business Aircraft Association [NBAA] have repeatedly attempted to convince the administration to seek an alternative to participation in a civil shootdown policy. The American Association for Families of KAL 007 Victims has also expressed outrage at this provision. For them, there is no excuse to condone, let alone participate in, a policy that involves the deliberate shootdown of civil aircraft. I ask unanimous consent that letters from each of these associations be included in the Record.

There being no objection, the letters were ordered to be printed in the Record, as follows:
AIRCRAFT OWNERS AND

Dear Mr. Gelbard: The Aircraft Owners and Pilots Association will vigorously oppose any action by the United States government which would condone or encourage the use of deadly force against civilian aircraft.

We represent the interests of 325,000 members nationwide who take advantage of general aviation aircraft to fulfill their personal and business transportation needs. AOPA members are law-abiding citizens who share the Clinton Administration's desire to curb the use of general aviation aircraft as a tool in the illegal drug trade. But condoning the use of deadly force against civilian aircraft is irresponsible and fundamentally wrong.

Those in Washington who applaud the so-called `shootdown' policies of the Colombian and Peruvian governments cannot have forgotten that wo civilian airliners were shot down in recent years after they were mistaken for military aircraft. Trained military personnel using the most advanced equipment have demonstrated with tragic results that it is possible for a relatively slow-moving airliner to be mistaken for a fast-moving military jet fighter. Considering these horrifying events--one of which involved our own armed forces--how can anyone feel assured that a twin engine Cessna carrying Members of Congress on an overseas fact-finding mission will never be mistaken for an identical twin engine Cessna full of drug smugglers?

There are obvious alternatives to the use of deadly force which are equally effective, and the consequences of mistake are far less likely to result in injury or death. For example, we as pilots know that whatever goes up must come down. Aircraft suspected of drug smuggling activity are going to return to solid ground, one way or another. Utilizing the same modern technology and superior intelligence information which makes it possible to identify a suspected aircraft in the first place, it is merely necessary to continue tracking such an aircraft to its point of destination and apprehend the occupants and their cargo on the ground.

Because of potential multi-national jurisdictional issues, we recognize that additional international agreements might be required to facilitate this approach. We are confident that the State Department is capable of securing the necessary cooperation of other nations in the war on drugs.

And surely any foreign government with sufficient resources and firepower to shoot unarmed civilian aircraft out the sky also has the wherewithal to arrest criminals once they have landed. Aside from reducing the possibility of tragic mistake, it seems to us that such an approach has the added advantage of preserving evidence and potential witnesses who may be able to help lead authorities to their superiors in an international drug smuggling cartel.

We commend those elements of the Clinton Administration which news reports indicate are opposed to encouraging the use of deadly force against civilian aircraft. In the zeal to curtail the debilitating presence of illegal drugs in our society, the United States as the leader of the free world must exercise common sense and maintain its adherence to fundamental moral and legal concepts.

We would appreciate an opportunity to meet with you to discuss our concerns. In the meantime, thank you for considering our views.

Sincerely,

Phil Boyer,
President.

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AOPA Legislative Action,
Washington, DC.

Oppose Shooting Down Civilian Aircraft

AOPA Legislative Action is opposed to any action by the United States government which would encourage the use of deadly force against civilian aircraft. Language included in the Senate version of the defense authorization bill would condone the use of deadly force against civilian aircraft by Colombia and Peru, which seek to use U.S. intelligence information for the purpose of shooting down aircraft suspected of illegal drug smuggling activity.

We represent thousands of pilots nationwide who take advantage of general aviation aircraft to fulfill their personal and business transportation needs. Our members are law-abiding citizens who share the desire of lawmakers to curb the use of general aviation aircraft as a tool in the illegal drug trade. But condoning the use of deadly force against civilian aircraft is fundamentally wrong.

Those who are attracted by the so-called `shootdown' policies of the Colombian and Peruvian governments must remember that two civilian airliners were shot down in recent years after they were mistaken for military aircraft. Trained military personnel using the most advanced equipment have demonstrated with tragic results that it is possible for a relatively slow-moving airliner to be mistaken for a fast-moving military jet fighter. In addition, the Defense Department recently disclosed details of the cascading series of communications failures which resulted in the accidental shooting down of two U.S. Army helicopters by American F-15 fighters which mistook them for Iraqi aircraft. The Iraqi incident illustrates the potential for tragedy which exists any time deadly force is applied, let alone against civilian aircraft.

Considering these horrifying events--some involving our own armed forces--it is impossible to assure that a twin engine Cessna carrying Members of Congress on an overseas fact-finding mission will never be mistaken for an identical twin engine Cessna full of drug smugglers.

There are obvious alternatives to the use of deadly force which are equally effective, and the consequences of mistake are far less likely to result in injury or death. For example, using the same modern technology and superior intelligence information which makes it possible to identify a suspected aircraft in the first place, it is merely necessary to continue tracking such an aircraft to its point of destination and apprehend the occupants and their cargo on the ground.

If the United States desires to continue sharing intelligence and providing other assistance to Colombia and Peru, it should seek assurances from the governments of those countries with respect to their shootdown activities. Preferably, Colombia and Peru would assure our government that they would engage in no more shootdowns of civilian aircraft. A less desirable alternative would be an assurance that Colombia and Peru would make no use of information or other aid provided by the United States in effecting shootdowns.

June 30, 1994, Washington, DC: The National Business Aircraft Association (NBAA) expressed deep concern today with the announcement late last week of President Clinton's proposal to allow U.S. officials to provide tracking data to foreign governments that want to shoot down suspected drug-smuggling flights.

`The President's proposal, which requires Congressional approval, raises serious aviation safety issues,' said NBAA President Jack Olcott. `We agree with the protocol drafted in 1984 by the International Civil Aviation Organization (ICAO) which stated that, in part, `. . . every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered.' The potential for tragic error resulting in the loss of innocent lives is too great to warrant support for the `shoot down' approach to drug interdiction. In fact and unfortunately, recent history has proven this point,' he continued.

`Furthermore, we are proud of the excellent record of NBAA Member Companies with regard to the drug issue. To our knowledge, no NBAA Member Company aircraft has ever been found to have been involved in the smuggling of drugs.' He added, `Whether it be Colombia, Peru, or any other country, no foreign government should receive a signal from the United States Government that the `shoot down' approach is acceptable. And, specifically, NBAA is deeply concerned with the added risk to international flight operations of NBAA Member Companies as they endeavor to compete in the global marketplace should this proposal be approved by Congress.'

Olcott concluded, `It is our sincere hope that President Clinton will reconsider his decision and that Congress will reject the proposal if he fails to.'

NBAA represents the aviation interests of approximately 3,400 companies which own and operate general aviation aircraft as an aid to the conduct of their business, or are involved with business aviation. NBAA Member Companies earn annual revenues in excess of $3 trillion--a number that is about half of the Gross National Product--and employ more than 16 million people worldwide.

Dear Senator Wallop: We just become aware of the above Bill which we understand is up for a vote.

Section 1012 would grant immunity to authorized employees and agents of the United States and of foreign countries engaged in interdiction of aircraft used in illicit drug trafficking.

We urge you to vote against this amendment to Bill S. 2182.

Eleven years ago we lost 269 of our loved ones precisely because Korean Airlines Flight 007 was interdicted for security reasons by the then Soviet authorities.

By passing this amendment we would set indeed a bad example to the world allowing the destruction of civilian aircraft. In fact passage of this bill would encourage drug traffickers to fill their planes with civilians, and dare our authorities to shoot them down. How would we know who are the innocent and who are the guilty passengers on such planes?

It cannot be the policy of our Government to grant anybody immunity for a decision to terminate a civilian flight, for whatever reason.

Thank you for your attention.

Respectfully,

Hans Ephraimson-Abt,
Chairman.

Mr. WALLOP. Mr. President, those who oppose section 1012 do not want U.S. military personnel or other U.S. Government employees to be liable under U.S. law for merely doing their assigned duties. Nor do they want the United States to be soft on drug trafficking. What they are saying is that U.S. participation in a civil aircraft shootdown policy is not the only alternative and certainly not the best one. Unfortunately, the alternatives have not even been considered by Congress.

Given the legitimate concerns that have been raised, and the fact that section 1012 overturns decades of U.S. policy, it is irresponsible at best for Congress to pass this section without hearings and full debate. This is not a slight modification. It is a large hole in U.S. policy and international practice.

Mr. President, I realize that the Senate is unlikely to defeat the defense authorization conference report based solely on this provision. I, for one, however, will vote against this conference report largely as a result of this provision. I hope that it will never be implemented and that in the future the Congress will come to its senses and rethink this dangerous approach.

REGARDING THE THEATER AIR CONTROL IMPROVEMENT [TACSI

Mr. NUNN. The Senator from New Hampshire is correct.

Mr. SMITH. I recognize the need to reduce spending wherever possible, but I am concerned that this cut may produce unintended harm to the Air Force Mission Support System [AFMSS] program, which is the mission, planning portion of the TACSI Program. As my colleagues know, AFMSS consolidates many different and costly mission planning systems into one standard system, consistent with the policy of establishing migration systems in defense procurements. I fear that a reduction of this nature will negatively impact our operational warfighting capability.

Could the distinguished chairman and ranking member comment on this issue?

Mr. NUNN. I would be happy to respond. I am aware of the importance of the AFMSS Program, and share my colleague from New Hampshire's commitment to preserving our Nation's warfighting capabilities. I can assure the Senator that, while the conferees did strive to achieve budget savings, it was not the intent of the conferees to reduce funding for the AFMSS portion of the TACSI Program.

Mr. THURMOND. The distinguished chairman is correct. The reduction of $7.6 million was not done with any prejudice toward the AFMSS Program. Rather, it was an effort on the part of the conferees to avoid creating so-called hollow budget authority, since the House and Senate Defense appropriations bills each reduced the overall funding level for the TACSI Program.

Mr. SMITH. I thank my colleagues for this clarification, and for their support of this important program.

Mr. LIEBERMAN. Mr. President, I am pleased to have been a part of the conference with the House of Representatives on the fiscal year 1995 Defense authorization bill and to have worked under the able leadership of the distinguished chairman of the Senate Armed Services Committee, Senator Nunn. I have advocated for some time now that the Senate should enact a law which would require the United States to lift unilaterally the arms embargo imposed on Bosnia. The amendment which the minority leader, Senator Dole, and I offered to the Defense authorization bill when it was on the floor on July 1, 1994. That amendment failed by a 50-to-50 tie vote. A Nunn-Mitchell amendment expressed a sense of the Congress on this subject; this amendment was passed with a 52 to 48 vote. The House of Representatives entered conference with an amendment similar to the Dole-Lieberman amendment which had passed the House with a 66-vote margin.

During the authorization conference, I worked to achieve compromise language which would have required unilateral lifting of the embargo consistent with both Dole-Lieberman and the House position. The chairman of the Armed Services Committee offered an innovative and thoughtful proposal which attempted to bridge the gap between the two positions. I felt that this proposal took important steps with regard to the arms embargo, but it stopped short of requiring, as the last step of the process it established, that the President unilaterally lift the embargo if efforts to attain approval of the U.N. Security Council for a multilateral lifting failed. Ultimately, the efforts of those of us in the conference who favored adding to it a unilateral lifting of the embargo failed and the language offered by the Senator from Georgia was accepted as the final conference language by the conferees on August 10.

While I supported and signed the conference report on the Defense authorization bill, I am making this statement so that the record accurately reflects my concern over the final language adopted on Bosnia by the conference.

I should note that there have been subsequent developments on this issue. During consideration of the Defense appropriations bill on August 11, 1994, I joined once again with the Senate Republican leader and offered an amendment requiring the unilateral lifting of the arms embargo no later than November 15, 1994. This amendment was agreed to by the Senate by a vote of 58 to 42. An amendment by Senators Nunn and Mitchell which was identical to the language agreed to in the Defense authorization conference was also agreed to, by a vote of 56 to 44. Consistent with the position I took in conference, I voted for the amendment on August 11 because I believe it provides the necessary preliminary steps to a unilateral lifting of the embargo as required by the Dole-Lieberman amendment.

Mr. MITCHELL. Mr. President, the Senate has now considered the conference report on the Department of Defense authorization bill. This is an important measure, although it is relatively noncontroversial, and I anticipate, when we finally have a vote on it, it will be approved by a substantial margin.

It had been my hope that the Senate would complete the debate on this measure today, and that we could have a vote tomorrow morning. We then were asked by our Republican colleagues not to have any votes tomorrow until after the respective party lunches and conferences, and I therefore agreed to that. I announced earlier today in response to that request that there would be no votes prior to 2:30 tomorrow.

We then were further asked for additional time to permit Senators who were not present today to be present tomorrow to debate that Department of Defense authorization bill, and I have agreed to that. The time requested was approximately 4 hours, and if we come in at 10 and have the usual recess for the luncheon period, the vote would then occur at about 4:30.

Accordingly, Mr. President, I now ask unanimous consent that the vote on the Department of Defense authorization bill occur at 4:30 p.m. tomorrow, and that the time prior to that be equally divided between the two parties for debate on the matter in the usual form.

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Mr. McCONNELL addressed the Chair.

The PRESIDING OFFICER. The Senator from Kentucky.

Mr. McCONNELL. Mr. President, I am going to have to object, but I do want to say to the leader that we are hopeful we can acquire approval to have the vote some time tomorrow afternoon. It is my understanding that Senator McCain will be here at 10 o'clock in the morning. It will be a debate to begin at 10 o'clock and he will be here to discuss the pending matter.

The PRESIDING OFFICER. Objection is heard.

Mr. MITCHELL. Mr. President, I regret that we were not able to get the agreement. I hope that we will be able to tomorrow, that we will be able to vote on this matter tomorrow. It is an important bill on which we must complete action.